It sounds like all he did was say that the judge should review the material first to decide whether or not there's even an argument about whether it should be shared. If there is, he can move on to an adversarial hearing to settle the issue.

If he looks at the evidence and finds that there is nothing there that even arguably falls under the Brady rule, then there's no reason for it to be shared.

__________________

"I'll see you guys in New York." ISIS Caliph Abu Bakr al-Baghdadi to US military personnel upon his release from US custody at Camp Bucca in Iraq during Obama's first year in office.

It sounds like all he did was say that the judge should review the material first to decide whether or not there's even an argument about whether it should be shared. If there is, he can move on to an adversarial hearing to settle the issue.

If he looks at the evidence and finds that there is nothing there that even arguably falls under the Brady rule, then there's no reason for it to be shared.

Actually, usually judges defer to have the prosecution hand over all the evidence for the simple fact that the judge does not now the defenses strategy and evidence they in their opinion is immaterial, may in fact not be. Considering Brady material also includes information the defense can use to impeach the credibility of government witnesses and/or reduce the defendants sentence. This ruling is very suspect.

It sounds like all he did was say that the judge should review the material first to decide whether or not there's even an argument about whether it should be shared. If there is, he can move on to an adversarial hearing to settle the issue.

If he looks at the evidence and finds that there is nothing there that even arguably falls under the Brady rule, then there's no reason for it to be shared.

It turns out that the FISA statute requires the judge to review the material first to determine whether or not it was legally acquired and only if she can't make that determination is she allowed to share it with the defendant's properly cleared attorneys. In this case, the judge was able to make that determination but she ordered the material shared anyway in violation of the statute.

In a separate opinion (.pdf), Judge Rovner acknowledges the inherent problems defendants will have in challenging FISA warrants and calls on all three branches (especially Congress) to attempt to address them. Nonetheless, Rovner concurs with the Posner opinion "in full". There were no dissents.

__________________

"I'll see you guys in New York." ISIS Caliph Abu Bakr al-Baghdadi to US military personnel upon his release from US custody at Camp Bucca in Iraq during Obama's first year in office.

Yes, considering we already now the NSA hands over evidence to the DEA so that they can construct an investigation and hide the source of the initial tip, that being a warrantless wiretap. The defense lawyers have a good case that the FBI may have gotten the same help before you know entraping the guy.

This evidence could impeach government witnesses as to how exactly they made the case against the defendant.

Yes, considering we already now the NSA hands over evidence to the DEA so that they can construct an investigation and hide the source of the initial tip, that being a warrantless wiretap. The defense lawyers have a good case that the FBI may have gotten the same help before you know entraping the guy.

This evidence could impeach government witnesses as to how exactly they made the case against the defendant.

I understand that *you* want increased levels of due process, but I was asking where adversarial evidentiary hearings are required in the constitution.

__________________

"I'll see you guys in New York." ISIS Caliph Abu Bakr al-Baghdadi to US military personnel upon his release from US custody at Camp Bucca in Iraq during Obama's first year in office.